Equality: With a Focus on Racial Discrimination Ronald Craig

Discrimination in Health Service Delivery (Letter from Hospital to Primary Care Physician) “Dear Colleague, You have sought admission to the hospital for Mr. “X”. Experience has shown that the offer of treatment at Coastal Hospital is of little value for persons from foreign cultures with chronic pain problems. As a rule, this is frustrating for both the patient, and unfortunately for our personnel. And therefore we have chosen to reject this type of referral. Sincerely yours, Chief Medical Officer” 2

3 Morally despicable A rotten apple Strong prejudice that must be eradicated

4 Let us change the facts (Case would have been totally different) Neutral reason for rejection: ”The patient did not meet the criteria for selection from the priority queue” Criteria: Expected gain from the treatment Expected use of resources Probably no complaint (direct or indirect) would succeed

5 A far greater problem Why do I use this example? I want to show how difficult it is for us all – to see the far greater problem right beneath our feet. The underlying problem is a more structural problem

6 Lack of Equality in Service Delivery The chief doctor’s experience that ethnic minorities did not receive a health service of the same quality or value No one focussed on this!

Why doesn’t the hospital adjust its service to fit the needs of its patients? Why does a hospital choose to continue an organizational practice (a service) that creates relative disadvantage for a group of its patients?

What is Discrimination?

9 UN Convention on Racial Discrimination (1965) CERD [ICERD] States shall prohibit and eliminate racial discrimination (Article 2)

10 The Right not to be Discriminated against because of your Race or Ethnicity States are obligated: –to respect the right, –to protect the right from interference by private individuals, and –to fulfill the right through its full realization

11 CERDs definition of ”racial discrimination” “[A]ny distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” (Article 1)

What is Discrimination? Oversimplified Answer: Unjustifiable differential treatment or effect linked to a prohibited ground –unjustifiable differential treatment or –like treatment producing an unjustifiable differential effect 12

13 Discrimination Direct discrimination: Like cases are treated differently without justification [treatment is on the basis of a prohibited ground] Indirect discrimination: Different cases are treated the same without justification [treatment is on the basis of a «neutral» ground]

Indirect Discrimination when persons are treated on the basis of factors other than prohibited characteristics (i.e., treated in a facially neutral way), yet this results in unjustifiable, disadvantageous and differential consequences (for a specific group) distinguished by a prohibited ground. 14

15 European Court of Human Rights, 2002: Anguelova dissent “Leafing through the annals of the Court, an uninformed observer would be justified to conclude that, for over fifty years democratic Europe has been exempted from any suspicion of racism, intolerance or xenophobia. …. Frequently and regularly the Court acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it.”

The concept of Indirect Discrimination has had a difficult birth and development in the practice of international human rights treaty bodies

17 D.H. and others v. The Czech Republic (2007) Complainants were 18 Czech citizens of Roma- origin, who were placed in special schools for children with learning difficulties The decision was taken on the basis of tests and the consent of parents Complainants argued: The tests were unreliable and the parents had not been sufficiently informed. Argued indirect discrimination Complainants showed that 56% of students in special schools were Roma, even though they only represented 2.2% of population of Ostrava.

18 D.H. and others v. The Czech Republic #2 (Important aspects of the case) Only the 2nd time the ECtHR has found a violation of art. 14 on the basis of ethnic discrimination First time the ECtHR found a violation of the prohibition against indirect discrimination (referred to EU directives) First time ECtHr acknowledged in such a clear manner use of a shared burden of proof Confirmed ”race” as a suspect category leading to a greater strictness of review Important statement on drawing of inferences and use of statistics in the weighing of evidence Important statement on developing international consensus on special needs of minorities (art 27, ICCPR)

19 D.H. and others v. The Czech Republic #3 (The Court found indirect discrimination) ”The Court has…accepted…that a difference in treatment may take the form of disporportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group….” ”Accordingly, the issue in the instant case is whether the manner in which the legislation was applied in practice resulted in a disproportionate number of Roma children…being placed in special schools without justification, and whether such children were thereby placed at a significant disadvantage.”

20 D.H. and others v. The Czech Republic #4 “As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State…. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake.”

Promoting Equality ≠ Prohibiting Discrimination Prohibiting discrimination is a minimum requirement to promoting equality, but …. Equality involves an additional dimension 21

Equality’s Additional Dimension (Focus on the distribution of advantages and disadvantages) A normative obligation to minimize or reduce distortions in the distribution of advantages and disadvantages [if not an undue burden] (not because the distortions are discriminatory) (But because of other values and principles) 22

Equality’s additional dimensions are based on other values and principles Human rights obligations beyond non- discrimination Desire for a fairer society, Desire for a more democratic society. [This is codified in Norwegian legislation on equality and non-discrimination in this way…] 23

Prohibition against direct & indirect Temporary Special Measures Positive duty to promote Equality 24 Ways to Promote Equality through Legislation (Complaint mechanism) (Regulatory mechanism)